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1973 DIGILAW 448 (ALL)

Brij Lal v. State

1973-10-10

MOHD.HAMID HUISAIN

body1973
ORDER Mohd. Hamid Huisain, J. - The reference arises out of proceedings u/s 145 Code of criminal Procedure. The learned Sessions Judge has recommended for the setting aside of the impugned order of the magistrate dt. 15-5-1971. 2. Puttu Lal by an application dt. 17-3-1970 applied, to the SDM Jalalabad, to initiate proceedings against Brij Lal and others u/s 145 Code of Criminal Procedure in respect of certain agricultural plots. The magistrate after obtaining the police report passed an order on 1-4-1970 Under Sub-section (1) of Section 145 Code of Criminal Procedure. 3. The contesting parties filed their written statements and affidavits in support of their respective claims. Brij Lal, Gulzari and Sanwal and some others filed joint written statement. In para 6 of their written statement it was asserted that there existed no apprehension of breach of peace. Affidavit was filed by Brij Lal and in paras 6 and 9 of the said affidavit it was again asserted that there existed no apprehension of breach of peace. The magistrate gave no importance to the assertion of the opposite parties with regard to the nonexistence of the apprehension of breach of peace and by his order dt. 6-1-1971 referred the issue of possession for a finding to the civil court. The Munsif by his order dt. 19-4-71 held Puttu Lal to be in possession over the disputed land. On receipt of the finding from the Munsif regarding possession, the magistrate u/s 146 Code of Criminal Procedure in conformity with the decision of the civil court passed the impugned order on 15-5-1971 releasing the disputed plots and the crops standing thereon in favour of Puttu Lal and forbidding Brij Lal and others from interfering with the peaceful possession of Puttu Lal till he was evicted by an order of a competent court. 4. Aggrieved by the aforesaid order Brij Lal and the two others went up in revision. The main ground was that the magistrate without going into the question of the existence of apprehension of breach of peace and recording a finding thereon, could not proceed to consider the question of possession between the contesting parties and the order of the Magistrate incorporating the finding of the Munsif is illegal. This contention of the learned Counsel found favour with the learned Sessions Judge who has recommended for the setting aside of the impugned order. 5. This contention of the learned Counsel found favour with the learned Sessions Judge who has recommended for the setting aside of the impugned order. 5. Sri G.C. Dwivedi, learned Counsel for Puttu Lal has opposed the reference made by the learned Sessions Judge. The learned Counsel has contended that the question of non-existence of apprehension of breach of peace was never seriously contested by the revisionist Brij Lal and others and mere mention in the written statement of the non-existence of apprehension of breach of peace cannot be taken as having been seriously contended by the revisionist before the magistrate. It is further contended by the learned Counsel that even at the stage when the question of possession was referred by the magistrate to the civil court no objection was raised before him, that since there existed no apprehension of breach of peace, the issue of possession ought not to be referred to the civil court. It is further contended that even before the Munsif no such objection of non-existence of apprehension of breach of peace was raised by Brij Lal and others. According to the learned Counsel Under Sub-section (5) of Section 145 Code of Criminal Procedure it was incumbent up in Brij Lal and others to show to the magistrate that no such dispute giving rise to the apprehension of breach of peace exists or has existed and that the preliminary order should be cancelled. According to the learned Counsel, Brij Lal and others should have seriously challenged the existence of apprehension of breach of peace and therefore, the impugned order of the magistrate passed in conformity with the finding of the civil court ought not to be interfered with. The learned Counsel has also relied on two decisions reported in Raja Ram v. Mata Pd. 1968 AWR 247 and Farzand Ali Vs. Shaukat Ali and Others, AIR 1971 All 12 . Both these cases are not applicable to this case. 6. The present case is fully covered by the decision of a Division Bench of this Court in the case Sheonath Singh v. Mannoo Singh 1969 AWR 817 . 1968 AWR 247 and Farzand Ali Vs. Shaukat Ali and Others, AIR 1971 All 12 . Both these cases are not applicable to this case. 6. The present case is fully covered by the decision of a Division Bench of this Court in the case Sheonath Singh v. Mannoo Singh 1969 AWR 817 . In this case it has been held that where in a proceeding u/s 145 Code of Criminal Procedure one of the contending parties challenges the existence of a dispute likely to cause breach of the peace, then it is incumbent upon the magistrate to first address himself to the question whether or not there exists an apprehension of breach of peace. If the magistrate comes to the conclusion that there exists no apprehension of breach of peace, then he has to stay his hands because he gets jurisdiction to deal with the immovable property only when there arises apprehension of breach of peace and not otherwise. Even if the magistrate is satisfied at the time of passing the preliminary order ex parte, of the existence of apprehension of breach of peace, that preliminary order will not continue to retain the jurisdiction of the magistrate when the factum of the existence of apprehension of breach of peace is challenged by one of the parties. The assertion of one of the contesting parties about the non-existence of apprehension of breach of peace is actually a challenge to the jurisdiction of the magistrate to deal with the immovable property, which is subject-matter of rival claims. Therefore, the magistrate has again to inquire and record a finding that in spite of the assertion by one of the contending parties of the non-existence of apprehension of breach of peace, he is satisfied from the record that there exists an apprehension of breach of peace between the contesting parties on account of their rival claims to the disputed immovable property and it is only thereafter that the magistrate can proceed to exercise his jurisdiction in respect of the disputed immovable property and decide the question of possession or refer it to the civil court of competent jurisdiction as envisaged u/s 146 Code of Criminal Procedure. 7. 7. Even after the receipt of the finding of the civil court in respect of possession, if the magistrate finds that there exists no apprehension of breach of peace or the apprehension of breach of peace has disappeared, it is open to the magistrate to drop the proceedings under the proviso to Sub-section (1) of Section 146 Code of Criminal Procedure rather than proceed to pass an order Under Sub-section (1-B) of Section 146 Code of Criminal Procedure in conformity with the finding of the civil court. 8. The contention of Sri Dwivedi is that if Brij Lal and others were seriously denying the existence of apprehension of breach of peace, then this fact would have found mention in the judgment of the magistrate. This contention has no force. In the joint written statement of Brij Lal and others and in the affidavit of Brij Lal filed before the magistrate it was clearly asserted by Brij Lal and others that there existed no apprehension of breach of peace. The Magistrate u/s 145(4) is under bounden duty to peruse the statements, documents and affidavits for concluding the enquiry and to decide the question of possession between parties. It cannot be said that the Magistrate did not peruse the joint written statement and affidavit filed on behalf of Brij Lal and others so as to be ignorant of the pleas taken therein. 9. In the circumstances discussed above and for the reasons contained in the referring order of the Sessions Judge, the impugned order of the magistrate dt. 15-5-1972, is set aside and the case is remanded with the direction that the magistrate will first inquire and record a finding as to whether or not there exists an apprehension of breach of peace on account of rival claims in respect of the disputed plots. In case the magistrate comes to the finding that there does exist an apprehension of breach of peace, he should recorded to decide the question of possession in accordance with law. This case on demand will be dealt with by a magistrate other than the magistrate whose order dt. 15-5-1972 has been set aside. 10. The reference is accepted.